A few years ago, I did a report for RNZ’s MediaWatch programme, raising questions about whether the hidden camera stings in TV3’s Target programme were complying with broadcasting standards and the law of trespass.

Over the years, Target has survived a string of broadcasting standards complaints. The producers deserve some credit. They always take care to try to ensure their criticisms are fair and that those stung get to have their say too.

Still, Target was also lucky. The wrong people complained, and when the right people complained, they relied on the wrong grounds and arguments.

Now, it seems, Target’s luck has run out. The BSA has upheld a complaint that strikes at the heart of Target’s methodology. It will need to change its ways or face some stiff penalties.

The BSA has always said that hidden cameras are by nature intrusive and unfair, and require some prima facie evidence of wrongdoing before they’re used, and some real public interest in the footage before it’s broadcast. The big problem for Target: how do these rules square with Target’s routine practice of secretly filming people it has no prior reason to believe have done anything wrong, and broadcasting footage that, for most of those depicted, doesn’t really show any significant wrongdoing.

Target argues that the programme as a whole is in the public interest, and that they shouldn’t have to justify each component of the broadcast.

The complaint was about a hidden camera trial involving caregivers who were invited into the Target home to care for a patient (an actor hired by Target). Four caregiver companies were used. Two of the caregivers performed pretty well: the BSA said there was no justification to screen them at all without their consent. Two others were guilty of minor indiscretions (drinking juice from the fridge and taking a bag of chippies without permission, giving the patient cookies contrary to instructions, not giving the patient privacy in the bathroom, etc). The BSA said this just wasn’t bad enough to create the public interest sufficient to justify the severe intrusion involved.

So the BSA upheld complaints based on fairness and privacy. TV3 tried to argue that it effectively had consent: it had written to the companies for their comments and none had objected to the use of the material. But as the BSA pointed out, that’s not the same as approaching the caregivers themselves. Besides, a failure to object is hardly the same thing as giving consent.

On the way the BSA has interpreted the codes in the past, I can’t see how the BSA could have reached any other conclusion. In fact, there may well have been private facts about the caregivers revealed, too. (The BSA didn’t consider that strand of its privacy rules).

So what does this mean for Target? Either an appeal to the High Court, or a change of methodology. The BSA pointed out that Target could have sought actual consent – and the caregivers depicted favourably might have been happy to provide it. (Or not). The others almost certainly wouldn’t – but their faces could be pixelated. The companies could still be identified, and the public interest served that way (presumably as long as this wouldn’t also effectively identify the employee).

Or Target could restrict itself to broadcasting hidden camera footage when it really had something significant to reveal.

I think hidden cameras are deeply intrusive, and TV3 doesn’t appreciate the harm it does to its sting victims – even those who aren’t shown misbehaving. The grainy gotcha flavour of hidden cameras creates an aura of evildoing right from the get-go.

But it’s fair to consider the other side. Target may well have done incalculable good in alerting us to the abuses committed by tradespeople who come into our homes, and perhaps in deterring that sort of misconduct. Isn’t there a sense in which it’s true that the programme as a whole is in the public interest? And it’s notable that the caregivers didn’t themselves complain – which highlights a serious and justified gripe by broadcasters: why should someone who had nothing to do with a programme be able to complain about the personal harm done to someone else?